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Judgment
Ravi R. Tripathi, J.
1.0 Rule. Learned senior advocate Mr. BB Naik appearing with Mr. BG Patel, learned advocate for the Respondent, waives service of process of Rule.
2.0 The present application is filed praying for:
17(B) Your Lordships may be pleased to recall the order of status-quo dated 11/5/2010 passed in Appeal from Order No. 112 of 2010.
2.1 It is also prayed that:
17(C) Your Lordship may be pleased to punish the Respondent No. 1 herein for the willful disobedience of the order of status-quo dated 11/5/2010 passed in Appeal from Order No. 112 of 2010 in accordance with law, more particularly as per Order 39, Rule 2(A) of the Code of Civil Procedure.
3.0 Heard learned senior advocate Mr. Kavina for the applicant and learned senior advocate Mr. BB Naik for the opponent No. 1 herein - original Appellant.
4.0 Learned senior advocate for the applicant invited attention of the Court to order passed by this Court on 11th May 2010 in Appeal from Order No. 112 of 2010. Plain reading of that order is suggestive of the fact that the Court granted indulgence to the Petitioner taking into consideration the controversy involved in the matter and deemed it proper to expedite the hearing of the suit - Civil Suit No. 2430 of 2009.
4.1 While passing that order, at the request of the learned senior advocate for the Appellant it was clarified that, "the status-quo is to be maintained even by the Government authorities and the Government authorities will not be disturbing possession of the present Plaintiff".
4.2 Learned senior advocate for the applicant herein invited attention of the Court to a Civil Application filed along with Appeal from Order, a copy of which is produced at page 95. In that Civil Application, in Para 1, it is specifically stated that, "... That the applicant is in possession of the property and, till today, running business on the said land. That the applicant is also paying bill of electric, Municipal taxes and other taxed under law, which are required to be paid and thus, Appellant is having peaceful possession of the property in question."
4.3 In the present application, it is averred that the aforesaid statement is incorrect and in reply to that, an affidavit in reply is filed by the Respondent No. 1 herein - original Appellant. In that affidavit in reply, in Para 5, it is stated that, "... That accordingly on 17.11.2009, Panchnama was carried out by the Court Commissioner, wherein, it is specifically stated that the present disputed part of the land wherein, the factory and some tools with regard to colouring the auto rickshaw, body work, and chassis of the rickshaws is there, and for that, part-J of the said Map is produced along with the said Panchnama. Annexed hereto and marked as Annexure ''X'' is the copy of the said Commissioner Report and the Map."
4.4 In Para 6 of the said affidavit in reply it is also stated that, "I further say and submit that the allegations in the said application, that the land has been transferred to third party after order passed by this Honourable Court in Appeal from Order dated 11.05.2010 is not true as the said part of the land is used by the said Sarfarazmohammad Mustufa Shaikh since long and before filing of the suit. I say and submit that not a single inch of land has been ever transferred after the order that came to be passed by this Honourable Court in Appeal from Order..." (emphasis supplied)
4.5 This is nothing but an afterthought for giving camouflage to a bald and bold statement made before this Court in Civil Application filed along with the Appeal from Order.
4.6 The learned senior advocate for the applicant in this application also invited attention of the Court to the averment made before the Court below in filing exh. 7 (Plaintiff''s Notice of Motion application), wherein, in Para 1, it is asserted that, "Since 1973, the Plaintiff, being the only legal heir of Kudartmiya, is carriyng on business in the name of Plastokem Industries". It is also asserted that, "the Plaintiff is in sole possession and occupation of the premises in question since 1963 (sic. 1973) and that the said premises are within the possession and occupation of the Plaintiff...".
5.0 In view of that, this Court deems it proper to recall order dated 11th May 2010. The Court restrains itself from being harsh to the Respondent No. 1 herein - original Appellant.
5.1 The Registry is directed to place the Appeal from Order before the concerned Court for further hearing.
5.2 The Misc. Civil Application is accordingly allowed. Rule is made absolute with no order as to costs.